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HIV criminalization may discourage testing, study shows

LANSING -- A team of researchers has published findings that, they say, indicate criminalization of HIV may discourage testing and hinder efforts to prevent the spread of the disease.

The study, from Canada, found that a significant minority of men who have sex with men said that a series of high-profile criminal prosecutions related to HIV nondisclosure had impacted their willingness to get tested for the virus or to discuss risk factors with medical professionals. The researchers further reported that these individuals were more likely to engage in higher-risk sexual practices.

“Our results indicate that, although it is a minority of individuals (17.0% and 13.8%, respectively) who reported that nondisclosure criminal prosecutions either (a) affected their willingness to get tested for HIV, or (b) made them afraid to speak with nurses and physicians about their sexual practices, this small group reported higher rates of unprotected penetrative anal intercourse and internal ejaculation with, on average, a higher number of different sexual partners within the previous 2 months,” wrote the study’s authors.

The researchers found in addition to reporting “less STI/HIV testing,” this same group of respondents reported a “preference for anonymous HIV testing” -- meaning that public health officials would be unable to help contact the sexual partners of someone who did test positive.

The researchers warn that the study, which was published online in May by the Journal of the Association of Nurses in AIDS Care, is based on a nonrandom sample and cannot be generalized to the population as a whole. Additionally, one expert told The American Independent that preliminary analysis of a separate, U.S.-based study did not show an impact of disclosure laws on testing behavior.

Still, the Canadian study is the first empirical evidence to support activists’ contention that HIV-related criminal laws might pose an obstacle to HIV testing. Since these prosecutions tend to target individuals who tested positive for HIV and then allegedly did not disclose that fact to their partners, critics have warned that they create a situation where not knowing one’s status protects one from arrest, prosecution, and jail time.

The study’s lead author, Patrick O'Byrne, says the findings are particularly important for HIV prevention. In an email exchange with The American Independent, O'Byrne, who is a professor in nursing at the University of Ottawa, said the research showed “a significant relationship between nondisclosure prosecutions, an avoidance of testing, and higher-risk sexual practices.”

He added that numerous studies have noted that those who are unaware that they are infected with HIV are more likely to infect others.

“The major implications of our findings relate to public health outcomes and HIV prevention,” O'Byrne says. Noting that an estimated 20 percent of Americans and 26 percent of Canadians infected with the virus don’t know it, O'Byrne explains: “With such a large number of individuals not knowing they are HIV-positive, there are clearly issues which undermine current HIV testing strategies. What is not wanted is an additional factor that may further deter HIV testing. Our findings suggest that nondisclosure prosecutions may be one such factor — and therefore an unwanted influence for public health HIV prevention efforts.”

But O'Byrne and others note the study has limits.

“The results of this study must be interpreted within its context: Ottawa, Canada within one year after a nondisclosure prosecution involving headline, front-page media attention,” says O'Byrne. “Indeed, the local prosecution released the [accused’s] full name, photograph, and sexual orientation. While it is impossible to tell, one must acknowledge that these factors could have influenced the results.”

The headline reporting O'Byrne references include the highly publicized charges brought against a gay man for not disclosing his HIV-positive status to sexual partners. Those charges included aggravated sexual assault and attempted murder. In at least some instances, he is alleged to have infected other men.

After the man was arrested, Ottawa police officials released his picture and warned residents that he had “an infectious medical condition.” That release was condemned by HIV advocates and public health officials. The man remains in jail while he awaits the outcome of a Canadian Supreme Court decision on HIV transmission in that country, reported the Waterloo Region Record in March.

Carol Galletly -- a lawyer, professor, and researcher at the Medical College of Wisconsin -- says scientists “can’t afford to ignore” the new study but that it may not translate to U.S. experiences.

“As for whether I think we’d see the same thing in the U.S. ... I don’t think we’d see that level of awareness of law (either case law or statutes) among a sample of MSM [men who have sex with men] in the U.S. because our HIV exposure laws and prosecutions vary so much state by state,” Galletly said in an email exchange.

Unlike Canada, where prosecutors rely on traditional criminal laws such as sexual assault, attempted murder, and murder, the U.S has a patchwork of laws specifically involving HIV. According to the Center for HIV Law and Policy, 34 U.S. states and two U.S. territories have HIV-specific criminal laws. Some of those laws criminalize failure to disclose an HIV-positive status to sexual partners -- regardless of whether the virus is actually transmitted. Even in states without specific HIV statutes, prosecutors can bring charges under traditional criminal laws, such as assault with a deadly weapon charges.

Galletly says even in the most optimistic scenario, knowledge of U.S. laws -- as opposed to prosecutions -- would be low.

“A highly informed group in the U.S. would likely have 75 percent HIV-positive participants and under 50 percent HIV-negative participants who were aware of the law,” she says.

But, she adds, “if we asked in the U.S. if people were aware of prosecutions (not laws but prosecutions), I’m thinking these percentages would increase significantly. Most everyone has likely heard about one or more of our high profile cases.”

“Should we try to replicate this in the U.S.?,” asks Galletly. “Perhaps. Would we have the same results? I’m not sure.”

Galletly says that preliminary analysis from at least one U.S. study currently undergoing review “did not reveal a deterrent effect” on testing. According to Galletly, “Persons who were aware that their state had an HIV exposure law did not test less frequently ... than their counterparts who were unaware of their state’s law.”

Until now, references to the impact of criminal prosecutions and laws on HIV testing behavior have been anecdotal. Activists have referred to the “word on the street” as “take the test, risk arrest.” In interviews with The American Independent, one tester from Indiana said that he has seen people walk away from testing after being shown paperwork detailing the state’s “duty to warn” law.

In Indiana, test subjects are required to sign a consent document for the test that explicitly outlines the impact of a positive test result and Indiana law:

“I understand that if my HIV test result is confirmed positive, I will be counseled as to my duty to notify my past and present sex and/or needle sharing partners, including any spouse ... of my HIV positive status so they may arrange medical care. I will also be counseled as to my duty to notify all current and future sex and/or needle-sharing partners of my HIV positive status prior to engaging in behavior which may put them at risk per Indiana law. I understand my counseling will also include my inability to donate body fluids and tissues or sign a donor card or document. In addition, I will be informed of the benefits of early medical treatment.”

The testing agent from Indiana says that he has had clients get up and walk out of testing because of this section of the consent document (full document can be viewed here).

Sean Strub, who founded POZ magazine and is an anti-HIV-criminalization activist, calls the Canadian study “important” but shares Galletly’s concerns about replicating its results.

“Finding a direct link between criminalization and a reluctance to test, disclose or access treatment is going to be difficult except with people with HIV who are exceptionally well-informed or in places where there has been tremendous media coverage of the HIV criminalization phenomenon,” says Strub.

The role of the media in prosecution of HIV criminal laws is something Galletly says needs to be explored as well.

“What I think what we need to do, besides working to repeal laws that single persons out based on fear and discriminatory attitudes and with no empiric data, is to better understand how media coverage of prosecutions shapes the impact of these laws on HIV-positive and HIV-negative persons,” she says.

The study from Canada does have several limits, as the authors acknowledge. The sample was not randomized, subjects were recruited in high-risk sexual activity locations, and the demographic skews to white, gay men. The results, therefore, cannot be generalized.

O'Byrne says a larger study looking at the same issues has already collected data and is in the process of analysis. The preliminary analysis “confirms” the findings of the May 3 study, he says.

The National Gay and Lesbian Task Force has also weighed in on the study. Darlene Nipper, deputy executive director for the group, says that the organization opposes HIV criminalization and that this study bolsters that case.

“[Criminalization of HIV] is unsound policy and, while this study is limited in scope, it indicates that when people are threatened with punishment they are less likely to be open and honest with medical professionals,” Nipper tells TAI. “The focus should instead be on making HIV prevention and treatment programs easily accessible to everyone who can benefit from them."

The issue of criminalization is slowly shaping into a national and international dialog. In several states, citizen groups are working to repeal HIV-specific laws. In Congress, a bill has been introduced by Rep. Barbara Lee (D-Calif.) that would encourage reform of state and federal HIV policies. And in 2010, President Barack Obama’s National HIV/AIDS Strategy called on states to revisit their laws.

Last week, the Global Commission on HIV and the Law recommended that HIV-specific laws be repealed. The report also recommends that those convicted under such laws be pardoned.

All those recommendations are based in part on a growing body of scientific literature showing that HIV-specific criminal laws are not effective in stopping transmission of the virus.

“Incidence of HIV infection in states with and without HIV exposure laws does not differ, as one would expect if the laws were preventing new infections,” says Galletly, who has been a leading researcher on the impact of HIV criminalization laws on behavior.

In the end, the complicated and messy problem of addressing HIV risk and prevention won’t be solved with just one study.

“There is a lot of research showing criminalization doesn't slow the spread of HIV; the O'Byrne study is another piece of a complicated jigsaw puzzle,” says Strub. “But as the pieces get filled in, and the picture becomes clear, it will be obvious that criminalization creates more new HIV infections than it prevents.”